In the One-sided Foreign Intelligence Surveillance Court, It's Hard to Get The Whole Story

While most courts in the United States are adversarial—each party presents its side and a jury, or occasionally a judge, makes a decision—in the Foreign Intelligence Surveillance Court (FISC), only the government presents its case to a judge. While typically two opposing sides work under public review to make sure all the facts are brought to light, in the FISC the system relies on a heightened duty of candor for the government. As is illustrated all too well by recent developments in our First Unitarian v. NSA case, this one-sided court system is fundamentally unfair.

In March, after we learned that the government intended to destroy records of Section 215 bulk collection relevant to our NSA cases, we filed for a temporary restraining order in the federal court in San Francisco. We also filed a motion to correct the record with the FISC, since it was a FISC order requiring the destruction of bulk metadata after five years that was at issue.

Following the emergency hearing on our motion, the San Francisco federal court ordered the government to preserve the evidence. On the same day that the federal court issued its order, the FISC issued its own strongly worded order in which it granted our motion and mandated the government to make a filing with the FISC explaining exactly why it had failed to notify the Court about relevant information regarding preservation orders in two related cases, Jewel and Shubert. This omission influenced the FISC's decision on the government's request for relief, and the FISC was not happy about it.

On April 2, the DOJ made its filing. The government's statements in this document deserve close attention because they illustrate in high-definition the failures of the FISC's one-sided system.

The response essentially says that in hindsight, it is clear to the government why the FISC would have wanted to know about the Jewel and Shubert orders. But the government's filings show that it unilaterally decided it was right about its interpretation of the legal theories in these cases. In so doing, it failed to live up to the heightened duty of candor present in ex parte proceedings by failing to inform the FISC that this was disputed. In essence, the government narrowly interpreted the causes of action in the Jewel complaint, excluding the Section 215 surveillance purportedly authorized by the FISC, and thereby narrowing the evidence it would preserve. By making a decision about what facts were relevant, the DOJ attorneys elevated themselves into the role of a judge.

The government apologized to the FISC for its omission, but it also continues to inaccurately portray the controversy over the legal theories our cases. In fact, the DOJ uses this filing to again present their interpretation of the disagreement over the scope of the cases, failing to mention the various arguments we have made on that issue before Judge White in San Francisco. The DOJ calls our view "recently-expressed," attempting to create the impression that the DOJ had no idea that there was any controversy until 2014. They neglect to mention that we wrote in a 2010 brief that the "government defendants' assertion that 'plaintiffs do not challenge surveillance authorized by the FISA Court' ... misconceives both plaintiffs' complaint and the role of the district court ...."

If this had been a normal court proceeding, each side would present their position in the most favorable light, and the judge would decide who is right. In the FISC, however, this balanced system breaks down. This one-sided system allows for no accountability except in the rare circumstance where the affected parties can raise the issue with the court. Indeed, in most cases, the arguments and the decision are kept secret, and no one can second-guess the government.

This is why we continue to urge Congress to change the laws governing how FISC operates. At a minimum, significant court decisions must be made public, and a privacy advocate should be a part of the process. These improvements won't bring the same kind of balance that can come with an adversarial system, but could at least deliver a semblance of fairness to the process.

Related Updates

Once-secret surveillance court orders obtained by EFF last week show that even when the court authorizes the government to spy on specific Americans for national security purposes, that authorization can be misused to potentially violate other people’s civil liberties. These documents raise larger questions about whether the government can...

Last month, Congress reauthorized Section 702, the controversial law the NSA uses to conduct some of its most invasive electronic surveillance. With Section 702 set to expire, Congress had a golden opportunity to fix the worst flaws in the NSA’s surveillance programs and protect Americans’ Fourth Amendment rights...

President Donald Trump’s first State of the Union address last night was remarkable for two reasons: for what he said, and for what he didn’t say. The president took enormous pride last night in claiming to have helped “extinguish ISIS from the face of the Earth.” But he failed to...

Dear friends, Today, the United States Congress struck a significant blow against the basic human right to read, write, learn, and associate free of government’s prying eyes. Goaded by those who let fear override democratic principles, some members of Congress shuttered public debate in order to pass a bill that...

UPDATE, January 12, 2018: The Senate could vote Tuesday on a disastrous NSA surveillance extension bill that violates the Fourth Amendment. Click the link at the bottom of the page to email your Senator today and tell them to oppose bill S. 139. The House of Representatives cast a deeply...

Multiple nonprofit organizations and policy think tanks, and one company have recently joined ranks to limit broad NSA surveillance. Though our groups work for many causes— freedom of the press, shared software development, universal access to knowledge, equal justice for all—our voices are responding to the same threat: the possible...

The Supreme Court announced today that it will not review a lower court’s ruling in United States v. Mohamud, which upheld warrantless surveillance of an American citizen under Section 702 of the Foreign Intelligence Surveillance Act. EFF had urged the Court to take up Mohamud because this...

One of the government’s most powerful surveillance tools is scheduled to sunset in less than three weeks, and, for months, EFF has fought multiple legislative attempts to either extend or expand the NSA’s spying powers—warning the public, Representatives, and Senators about circling bills that threaten Americans’ privacy. But the frenetic...

If you’ve been following EFF’s work, you’ll know that we’ve been fighting against the creeping surveillance state for over 20 years. Often, this means pushing back against the National Security Agency’s dragnet surveillance programs, but as new technology becomes available, new threats emerge. Here are some of the biggest legislative...

Since last night, the debate over how to reauthorize certain NSA surveillance authorities has seen a whirlwind of activity, culminating in the major news that the House Rules Committee postponed a vote today to potentially expand NSA spying powers. As we wrote yesterday: "According to reports published Tuesday...